NCJ Number
96852
Journal
University of Pennsylvania Law Review Volume: 133 Issue: 1 Dated: (December 1984) Pages: 97-174
Date Published
1984
Length
77 pages
Annotation
Testimony from mental health professionals regarding a person's future behavior should be admissible only if the defendant first seeks to use clinical testimony to show lack of dangerousness.
Abstract
If the defendant chooses not to rely on such testimony, the state should be allowed to offer only proof of prior dangerous acts as well as firm actuarial data to prove future dangerousness. Both the due process perspective and the fifth amendment's privilege against self-incrimination support this view. Up to the present time, the law has relied on proneness to violence as a commitment and a sentencing standard. It has also continued to depend on testimony from mental health professionals as the main source of information on this issue, despite its widely acknowledged potential for inaccuracy. Although a lower court ruled against admitting such testimony, the U. S. Supreme Court, in Jones v. United States and Barefoot v. Estelle, has taken the opposite position. The approach advocated here is an intermediate position between complete exclusion and unquestioned acceptance of expert testimony on dangerousness. Although more difficult to implement than the more extreme positions, it is fairer and gives the factfinder the most reliable, most relevant, and least prejudicial information on the dangerousness issue. The recommended 'defendant-first' approach requires some mechanism for apprising the state of when the defense intends to use clinical prediction testimony. When no such intent is registered, it demands that any other clinical testimony, whether offered by the state or the defense, be carefully monitored to ensure that the dangerousness issue is not raised. A total of 267 footnotes are provided.